County Assembly to pay Sh7m over late vetting report

The Labour Court has ordered Nairobi County Assembly and Speaker Kennedy Ng'ondi to pay Sh7 million in damages to a Chief Officer nominee over a delayed vetting report.  

Justice Byram Ongaya of Employment and Labour Relations Court found that the Speaker failed to communicate the outcome of Halkano Dida Waqo’s vetting for the Chief Officer for Housing and Urban Renewal.position violated his rights, leaving him in uncertainty for over a year.

The court ruled that this delay was a clear breach of constitutional and administrative procedures.  

“The 3rd and 4th respondents (County Assembly and Speaker) are culpable for failing to publish and publicize important information as obligated by the Constitution and statute. The petitioner’s (Waqo)rights were violated, and he deserves redress,” Justice Ongaya ruled

In his judgement, Justice Ongaya awarded Waqo Sh7 million in general damages for violation of his rights under Articles 35 and 47 of the Constitution, which guarantee access to information and fair administrative action.

Waqo was nominated by Governor Johnson Sakaja on April 15, 2024, and appeared for vetting before the Assembly’s Lands, Planning and Housing Committee on May 6, 2024.

However, the committee never tabled its report, and the Assembly did not communicate whether he had been approved or rejected.

Through Bashir & Associates Advocates, Waqo told the court that the silence caused him financial loss, reputational harm, and emotional distress.

“The petitioner was left in an indefinite state of anxiety and uncertainty due to the respondents’ failure to perform their constitutional and statutory duty,” the court observed.

He sought a declaration that his rights had been violated and asked the court to compel the Assembly to table the report or quash any appointment made to the position.

In response, the Clerk of the County Assembly, Edward Gichana, admitted that the vetting report was never tabled, claiming the position had already been filled through reassignment.

He said that on August 5, 2024, Chief Officer Lydia Mathia was redeployed to head the Housing and Urban Renewal docket, rendering Waqo’s nomination overtaken by events.

The Assembly further argued that the vetting process was entirely within its jurisdiction and that the Executive could not interfere.

But Justice Ongaya rejected the explanation, saying the Assembly had aborted the vetting process without lawful reason.

“It was most callous and whimsical for the 3rd and 4th respondents to simply urge that the matter was overtaken by events when they themselves failed to table the vetting report or communicate to the petitioner,” the judge said.

He emphasised that the committee was legally obligated under Section 9 of the Public Appointments (County Assemblies Approval) Act, 2017, to table its report within 21 sitting days after vetting.

“The petitioner demanded to know the status of his vetting but no response was given. His right to access information held by the state and to fair administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair was violated,” the court stated.

The court cleared Governor Sakaja and the Nairobi County Government of any wrongdoing, noting that the Executive had no control over the Assembly’s internal procedures once nominees were submitted for approval.

“The 1st and 2nd respondents duly forwarded the nominee’s name in accordance with the law. The subsequent delay and failure lay squarely at the Assembly’s doorstep,” Justice Ongaya held.

Justice Ongaya declared that the County Assembly’s failure to table the report amounted to a violation of Waqo’s rights under the Constitution.

He ruled that the Sh7 million award would serve as both compensation and deterrence against future constitutional breaches by public bodies.

“The primary purpose of a constitutional remedy is to vindicate the rights violated and deter future infringement. The petitioner’s ordeal was wholly unnecessary and occasioned by administrative neglect,” the judge said.

The court, however, declined to quash the appointment of Ms. Mathia or compel the Assembly to revisit the vetting, saying the timelines had already lapsed and the position was no longer vacant.

“County assemblies must remember that their vetting power is a constitutional trust, not a political privilege. Failure to discharge it lawfully will attract personal and institutional liability,” Justice Ongaya stated.